1. In this case the three appellants were charged with the offence of murder under Section 302, I.P.C. The accused Derajtulla was unanimously found guilty, and the accused Erfan and Surat were found guilty by a majority of 7 to 2. The learned Sessions Judge, agreeing with the verdict of the jury in the case of each of the accused, sentenced Derajtulla to death and Erfan and Surat to transportation for life. The three accused have now appealed against their conviction and respective sentences to this Court. It is expedient, I think, that we should say something about the action of the learned Sessions Judge in taking the verdict of the jury. The jury having brought in a clean and clear verdict of guilty as against the accused, the learned Judge proceeded to examine the jurors, apparently with the object of ascertaining the ground upon which their verdict was based, in the following manner:
Q. Have you believed the evidence of Anath and Ajmal?
A. We are unanimous in believing the evidence of Anath. We have believed the evidence of Ajmal by a majority of 7 to 2.
2. In our opinion such a question the learned Judge was not permitted by law to ask Section 303, Criminal P.C., provides suitable procedure, where the answer of the jury to the question put to them as to whether an accused person is guilty or not guilty is so vague and uncertain that in order to ascertain whether the jury intended to bring in a verdict of guilty or not guilty it is necessary to ask supplementary questions. The object of Section 303 is merely to enable the Court to ascertain whether the jury intended to bring in a verdict of guilty or not guilty, and for no other purpose, in our opinion, is a learned Judge entitled to interrogate the jury under Order 303 after they have given their verdict. In this case the verdict of the jury was clear and precise, but for some reason or other the learned Judge took upon himself to examine the jurors with a view to ascertain whether their verdict was based upon the evidence of one or other or both of two important witnesses who had been called for the Crown. Such an interrogatory, in our opinion, the learned Judge was not permitted by law to administer, and the course taken by him has repeatedly been condemned by this Court, which has laid down that a Judge is not entitled to examine the jurors as to the grounds upon which they have based their verdict.
3. Now, the fact that a murder was committed on the night of 5th March 1929 is not and cannot be challenged. By a deodar tree at the entrance to a path leading through a bamboo jungle the trunk of the body of Sushil Bhaduri was discovered about 10-30 on the night of 5th March 1929; but the head had been severed from the trunk by some sharp and heavy weapon and has never been found Where it is, and what happened to it, nobody knows, and id is idle to speculate. The question to be determined in this case is whether the accused or any of them took part in the murder of Sushil Bhaduri. (After discussing the evidence in the case, his Lordship concluded.) In these circumstances, in our opinion, the case on behalf of the Crown was so strong that the only verdict which a jury of reasonable men would be justified in returning was one of guilty of wilful murder under Section 302 against each of the accused.
4. With regard to the sentences that ought to be imposed upon the accused it is enough to say that the perpetrators of a crime so callous and brutal as the murder of Sushil Kumar Bhaduri rendered each of them amenable to the extreme penalty of the law. The sentence of death passed upon Derajtulla Sheik is confirmed, and if a like sentence had been passed upon Erfan and Surat we should not have been disposed to disturb it. The learned Sessions Judge, however, for three reasons (none of which we think should have weighed with him in considering the sentence), has sentenced Erfan Sardar and Surat Sardar to transportation for life, and in all the circumstances we do not feel it necessary to alter that sentence which will stand.
5. The appeal, therefore, of all the appellants is dismissed, the sentence of death passed upon Derajtulla Sheikh is confirmed, and that of transportation for life upon Erfan Sardar and Surat Sardar will also stand.
6. I agree.